Original Proceeding Pursuant to C.A.R. 21 Weld County
District Court Case No. 25CR336 Honorable Audrey Galloway,
Judge
2
Attorneys for Plaintiff: Michael J. Rourke, District
Attorney, Nineteenth Judicial District Blake Madone, Deputy
District Attorney Greeley, Colorado
Attorneys for Defendant: Teodorovic Law, P.C. Adrienne R.
Teodorovic Windsor, Colorado
3
CHIEF
JUSTICE MARQUEZ delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE SAMOUR and JUSTICE
BERKENKOTTER joined.
OPINION
MARQUEZ, CHIEF JUSTICE
4
¶1
In this original proceeding, we review the trial court's
ruling at a preliminary hearing that Robert Joe Dilka's
criminal violation of a protection order[1] under section
18-6-803.5, C.R.S. (2025), constituted a predicate crime for
purposes of second degree burglary under section 18-4-203,
C.R.S. (2025).
¶2
To commit second degree burglary, a person must enter or
remain unlawfully in a building or occupied structure
"with intent to commit therein a crime against another
person or property." § 18-4-203(1). The question
here is whether, as a matter of law, the criminal violation
of a protection order amounts to a "crime against
another person or property" for purposes of second
degree burglary.
¶3
Per our decision in People v. Rhorer, 967 P.2d 147
(Colo. 1998), the answer is yes. There, we expressly held
"that a violation of a no-contact order constitutes a
predicate crime for purposes of the burglary statute."
Id. at 148. In so holding, we reasoned that because
the General Assembly has deemed the violation of a protection
order a crime in and of itself, see id. at 151 n.6
(citing § 18-6-803.5, 8B
5
C.R.S. (1986 &Supp. 1992)), the defendant's
"intent to violate the no-contact order by breaking into
[the victim's] home constituted an 'intent to commit
therein a crime against [a] person or property' and
fulfilled that element of the crime of second degree
burglary." Id. at 151 (quoting § 18-4-203,
C.R.S. (1997)). Today, we confirm that Rhorer
established a bright-line rule that a criminal violation of a
protection order under section 18-6-803.5 serves as a
predicate crime for second degree burglary because such a
violation constitutes a crime against another person or
property.
¶4
Here, the trial court properly concluded that, under
Rhorer, the criminal violation of a protection order
serves as a predicate offense for purposes of second degree
burglary. Accordingly, we discharge the order to show cause
and remand the case for further proceedings.
I.
Facts and Procedural History
¶5
The People charged Dilka with second degree burglary and
several other offenses[2] after he unlawfully entered his
ex-wife's home in violation of a mandatory protection
order issued under section 18-1-1001, C.R.S. (2025). The
6
protection order prohibited Dilka from contacting his ex-wife
and barred him from her home.
¶6
At a preliminary hearing on the burglary charge, the People
presented testimony and other evidence that Dilka violated
the protection order when he jumped the fence to enter his
ex-wife's yard, damaged the doorbell and back door, and
ultimately entered the home. Despite his ex-wife's
insistence that he leave, he followed her into the home. His
ex-wife locked herself in the bathroom and called the police.
When the police arrived, they found Dilka jumping back over
the fence and placed him in custody.
¶7
Dilka did not contest this evidence. Instead, he argued that
his conduct did not amount to a "crime against another
person or property" for purposes of second degree
burglary. The trial court rejected Dilka's argument,
reasoning that under Rhorer, the violation of a
protection order serves as a predicate crime for purposes of
second degree burglary because it is a crime against a person
or property. The court further reasoned that the protection
order in this case clearly stated that Dilka was to stay away
from the victim's home or any other location where she
was likely to be found, and that by violating that order,
Dilka committed a crime against a person or property. Thus,
based on its understanding of Rhorer, the court
concluded that the People had met their burden to establish
probable cause for the second degree burglary charge and set
that charge over for trial.
7
¶8
Dilka sought this court's review of the trial court's
ruling under C.A.R. 21. We granted his petition and now
discharge the order to show cause.
II.
Jurisdiction
¶9
Under C.A.R. 21, this court has "sole discretion to
exercise our original jurisdiction." People v.
Justice, 2023 CO 9, ¶ 17, 524 P.3d 1178, 1182
(quoting People v. Cortes-Gonzalez, 2022 CO 14,
¶ 21, 506 P.3d 835, 842). Any relief granted under Rule
21 is "extraordinary in nature and ... . will be granted
only when no other adequate remedy is available." C.A.R.
21(a)(2). We have granted such relief under Rule 21
"when an appellate remedy would be inadequate, when a
party may otherwise suffer irreparable harm, [or] when a
petition raises 'issues of significant public importance
that we have not yet considered.'" People v.
Walthour, 2023 CO 55, ¶ 8, 537 P.3d 371, 374
(alteration in original) (quoting People v. Kilgore,
2020 CO 6, ¶ 8, 455 P.3d 746, 748).
¶10
Here, we agree with Dilka's contention that any appellate
remedy would be inadequate because the issue concerns the
trial court's probable cause determination at Dilka's
preliminary hearing, which is unreviewable on appeal. See
People v. Nichelson, 219 P.3d 1064, 1066-67 (Colo.
2009). In addition, this case presents an issue of statutory
interpretation that warrants guidance from this court. For
these reasons, we exercise our jurisdiction under Rule 21.
8
III.
Analysis
¶11
After setting forth the standard of review, we begin by
discussing the holding in Rhorer and confirm that it
established a bright-line rule that a criminal violation of a
protection order serves as a predicate crime for purposes of
the second degree burglary statute. We then explain that the
rule in Rhorer is consistent with the text of the
burglary statute and the legislative intent behind section
18-6-803.5. We conclude that the trial court did not err in
applying Rhorer to Dilka's case to find probable
cause to bind over the second degree burglary charge for
trial.
A.
Standard of Review
¶12
We review a trial court's probable cause determination at
a preliminary hearing for an abuse of discretion. White
v. MacFarlane, 713 P.2d 366, 369 (Colo. 1986). But to
the extent a trial court's probable cause finding rests
on interpreting a question of law, we review the trial
court's interpretation de novo. See People v.
Webb, 2014 CO 36, ¶ 15, 325 P.3d 566, 570. Here,
because the trial court's probable cause finding centered
on its interpretation of sections 18-6-803.5 and 18-4-203, as
well as our opinion in Rhorer, we review those
interpretations de novo. ¶13 When interpreting statutes,
our goal is to discern and give effect to the
legislature's intent. See Town of Minturn v.
Tucker, 2013 CO 3, ¶ 27, 293 P.3d 581, 590. In
doing so, we apply the plain and ordinary meaning of
undefined phrases
9
and read statutes "in context" to give
"consistent, harmonious, and sensible effect to all of
[their] parts." McCoy v. People, 2019 CO 44,
¶¶ 37-38, 442 P.3d 379, 389.
B.
Rhorer
¶14
Dilka argues that Rhorer only addressed whether a
protection order violation amounted to a crime at all and did
not establish a categorical rule that violating a protection
order constitutes a predicate crime "against another
person or property" for purposes of burglary. We
disagree.
¶15
The defendant in Rhorer broke his
ex-girlfriend's basement window in an effort to get into
her home. 967 P.2d at 148. At the time, a protection order
issued by the Denver County Court was in effect prohibiting
the defendant from contacting the victim. Id. The
People charged the defendant with second degree burglary and
other crimes. Id.
¶16
At trial, the jury was instructed and given a verdict form
that allowed it to find the defendant guilty of burglary
using any of three predicate crimes: assault, menacing, or
violation of a protection order. Id. The jury
returned a verdict finding the defendant guilty of second
degree burglary based solely on the defendant's intent to
violate the protection order. Id.
¶17
A split division of the court of appeals reversed the
conviction, reasoning that the violation of a protection
order entered pursuant to a municipal ordinance
(rather than a state statute) was not a crime. People v.
Rhorer, 946 P.2d 503, 506-08 (Colo.App. 1997),
rev'd, 967 P.2d at 151.
10
The division majority refused to consider section 18-6-803.5,
the state statute criminalizing protection order violations,
because the People did not rely on section 18-6-803.5 to
justify the second degree burglary charge. Id. at
507-08. The division majority further reasoned that “an
intent simply to enter [the] premises, even if in violation
of a court order, would not constitute an intent to commit
another crime ‘therein'” beyond the intent to
make an unlawful entry. Id. at 508. Dissenting in
part, Judge Metzger reasoned that at the time of the offense,
a violation of a protection order issued by a municipal court
was a misdemeanor under section 18-6-803.5, and thus, such a
violation “was an appropriate predicate offense for the
crime of burglary.” Id. at 509 (Metzger, J.,
concurring in part and dissenting in part).
¶18
We granted certiorari review and reversed. We noted at the
outset that "the court of appeals held that an intent to
violate a no-contact order does not qualify as an 'intent
to commit therein a crime against a person or
property'" in violation of section 18-4-203.
Rhorer, 967 P.2d at 147 (quoting § 18-4-203(1),
C.R.S. (1997)). We observed that the court of appeals
reversed the defendant's conviction for burglary based
solely on the jury's finding that the defendant intended
to violate a protection order (and not an intent to commit
assault or menacing). Id. at 148. In other words,
the court of appeals reasoned that the defendant's act of
breaking into the victim's home in violation of the
protection order could not,
11
without more, serve as a predicate crime for second degree
burglary. We then expressly disagreed with the court of
appeals' analysis and held that "a violation of a
no-contact order constitutes a predicate crime for purposes
of the burglary statute." Id. We reasoned that
at the time of the crime, section 18-6-803.5 was already the
law, making the violation of a protection order a crime under
state law. Id. at 149-51. In particular, we observed
that the protection order at issue in the case "was
obviously intended to protect [the ex-girlfriend] from the
harms delineated in section 18-6-803.5(1)." Id.
at 150. Specifically, the order barred the defendant from
"threatening, beating, striking, or assaulting" her
and "require[d] [the defendant] to leave certain
premises and refrain from entering or remaining on such
premises." Id. (first alteration in original)
(quoting § 18-6-803.5(1), 8B C.R.S. (1986 &Supp.
1992)).
¶19
We reasoned that the violation of the protection order issued
in the case by the Denver County Court pursuant to its
authority under the Domestic Abuse Act, sections 14-4-101 to
-105, 6B C.R.S. (1987 &Supp. 1992), constituted a crime
under section 18-6-803.5. Rhorer, 967 P.2d at 150.
Thus, the defendant's "violation of the no-contact
order was an appropriate predicate crime under the second
degree burglary statute." Id. In reaching this
conclusion, we expressly rejected the court of appeals'
reasoning that the jury failed to find that the defendant
intended to commit a crime apart from the intent to commit an
unlawful entry, again
12
emphasizing that the legislature has deemed the violation of
a protection order "a crime in and of itself."
Id. at 151 n.6. We then summarized our analysis,
holding that the defendant's "intent to violate the
no-contact order by breaking into [the victim's] home
constituted an 'intent to commit therein a crime against
[a] person or property' and fulfilled that element of the
crime of second degree burglary." Id. at 151
(quoting § 18-4-203(1), C.R.S. (1997)).
¶20
This categorical statement in Rhorer means what it
says: a criminal violation of a protection order is not just
a crime, but a requisite predicate "crime against
another person or property" for purposes of second
degree burglary. § 18-4-203(1).
¶21
We therefore reject Dilka's contention that our holding
in Rhorer was limited to whether a violation of a
protection order constituted a crime at all. Rather, the
language quoted above makes clear that we held that it
does serve as a predicate crime, specifically, that
a criminal violation of a protection order under section
18-6-803.5 qualifies as a "crime against [a] person or
property."
C.
Rhorer Is Consistent with the Text of the Burglary
Statute and the Purpose of Section 18-6-803.5
¶22
The legislature did not define the phrase "crime against
another person or property" in the burglary statute.
§ 18-4-203(1). Although the legislature could have
easily referenced specific categories of offenses in the
Criminal Code, such as "Offenses Against the
Person" in article 3 of title 18, or "Offenses
Against
13
Property" in article 4 of title 18, it did not do so.
Accordingly, we construe the phrase according to its plain
and ordinary meaning to refer to an offense involving harm or
the threat of harm to another person or to
property.[3]
¶23
With this plain and ordinary meaning of the phrase in mind, a
close look at the definition of protection order in section
18-6-803.5 clarifies why the Rhorer court understood
a criminal violation of a protection order to qualify as a
"crime against [a] person or property."
Rhorer, 967 P.2d at 151 (quoting § 18-4-203(1),
C.R.S. (1997)). This statute defines a protection order as
any order issued by a state
14
or municipal court that prohibits the restrained person from
harming or threatening to harm the protected person or their
property (including animals):
'Protection order' means any order that prohibits the
restrained person from contacting, harassing, injuring,
intimidating, molesting, threatening, or touching any
protected person or protected animal, or from entering or
remaining on premises, or from coming within a specified
distance of a protected person or protected animal or
premises or any other provision to protect the protected
person or protected animal from imminent danger to life or
health . . . .
§ 18-6-803.5(1.5)(a.5)(I).
¶24
Every aspect of this definition shows that protection orders
exist to shield protected persons and their property from
harm or the threat of harm by the restrained party. Notably,
this definition applies to protection orders throughout the
Colorado statutes, including both civil protection orders
issued pursuant to article 14 of title 13, and mandatory
criminal protection orders issued pursuant to section
18-1-1001. § 18-6-803.5(1.5)(a.5)(I)(A).[4]
¶25
The legislative declaration in section 13-14-100.2, C.R.S.
(2025), further reveals the legislature's concern with
shielding protected parties from harm or the
15
threat of harm.[5] The declaration begins by recognizing that
protection orders "promote safety, reduce violence and
other types of abuse, and prevent serious harm and
death." § 13-14-100.2(1). It underscores that
victims of domestic abuse are subjected to not just physical
violence and harm, but also mental and emotional abuse, as
well as various forms of control that make "a victim
more likely to return to an abuser due to fear of retaliation
or inability to meet basic needs." §
13-14-100.2(2). The declaration further acknowledges that
victims experience both physical and emotional trauma from
unwanted contact with perpetrators and endure intense
physical and emotional distress from stalkers. §
13-14-100.2(3)-(4).
¶26
Similarly, the statute establishing mandatory protection
orders in criminal cases acknowledges the potential for harm
to the victims of crime as well as the potential for
witnesses to be subjected to intimidation or retaliation.
§ 18-1-1001(1). The statute thus requires a court to
enter protection orders that bar a defendant from
"harassing, molesting, intimidating, retaliating
against, or tampering with
16
any witness to or victim of the acts charged." §
18-1-1001(1)(a). It also authorizes the court to impose
additional restrictions, such as prohibitions on contacting a
protected party, being in locations where the victim or
witness is likely to be found, possessing firearms, and the
consumption of alcohol when there is a sufficient nexus to
the safety of a victim or witness. §
18-1-1001(3)(a)(II).
¶27
Section 18-6-803.5 recognizes that a restrained party's
violation of such protection order provisions innately
threatens a protected person's safety. Such violations
present the very psychological, emotional, and potentially
physical harm to the protected party (or to property,
including animals) that such protection orders seek to avoid.
¶28
For all these reasons, we reaffirm the rule established in
Rhorer: the criminal violation of a protection order
under section 18-6-803.5 is a "crime against another
person or property" for purposes of section 18-4-203(1)
and thus serves as a predicate crime for second degree
burglary.
IV.
Conclusion
¶29
The trial court correctly relied on our holding in
Rhorer to conclude that Dilka's violation of the
mandatory protection order served as a predicate crime for
second degree burglary and properly bound the charge over for
trial. Accordingly, we discharge the order to show cause and
remand the case to the trial court for further proceedings.
17
JUSTICE GABRIEL, dissenting.
18
¶30
Relying on our decision in People v. Rhorer, 967
P.2d 147, 148 (Colo. 1998), the majority concludes that the
violation of a protection order is, as a matter of law, a
predicate crime to support a burglary charge, regardless of
whether the facts establish that the violation constituted a
crime against another person or property, an essential
element of the crime of burglary. Maj. op. ¶¶ 2-3,
14, 20, 28.
¶31
Because (1) I do not agree that every violation of a
protection order, regardless of the facts at issue,
constitutes a crime against another person or property
sufficient to establish a predicate crime for second degree
burglary; (2) holding otherwise unnecessarily lowers the
prosecution's burden of proof in all burglary cases in
which the defendant may have violated a protection order and
will lead to absurd and unjust results in many cases; and (3)
our decision in Rhorer did not actually decide the
question now before us, I respectfully dissent.
I.
Factual Background
¶32
The majority sufficiently sets forth the relevant facts. I
will not repeat all of those facts here, but I will highlight
the facts most pertinent to my analysis.
¶33
The alleged victim, who is Robert Joe Dilka's ex-wife,
had a protection order against Dilka. The protection order
precluded Dilka from contacting the alleged victim or being
in any place that she was likely to be.
19
¶34
Notwithstanding the terms of the protection order, on the day
in question, Dilka entered the alleged victim's backyard
and then her home. No evidence presented at the preliminary
hearing indicated that he said anything to the alleged victim
after he entered the home, nor did he make any threats. In
addition, it appears that, at all times, there was a door
between him and the alleged victim, and he did not make any
attempt to open that door. According to him, he simply wanted
to retrieve his backpack.
¶35
The alleged victim contacted the police to report a
protection order violation, and the police responded to her
home. Dilka was subsequently arrested and charged with second
degree burglary, which requires the prosecution to prove that
Dilka "[broke] an entrance into, enter[ed] unlawfully
in, or remain[ed] unlawfully . . . in a building or occupied
structure with intent to commit therein a crime against
another person or property." § 18-4-203(1), C.R.S.
(2025).
¶36
The matter proceeded to a preliminary hearing. In his
pre-hearing briefing and at the hearing, Dilka, relying on
the division's opinion in People v. Poindexter,
2013 COA 93, 338 P.3d 352, argued that, on the facts
presented, the prosecution could not establish that any
violation of the protection order was a crime against another
person or property. Specifically, Dilka argued that in
Poindexter, ¶ 11, 338 P.3d at 355-56, the
division had concluded that (1) crimes against a person
involve either offenses in which the perpetrator had used or
threatened to use
20
force or crimes against the body of another human being and
(2) crimes against property involve offenses in which the
perpetrator sought to derive an unlawful benefit from or to
damage another's property without the threat of force.
Dilka asserted that no facts in this case support a finding
of a crime against another person or property under these
definitions.
¶37
The prosecution responded that in Rhorer, 967 P.2d
at 148, this court had held that a violation of a protection
order always constitutes a predicate crime for
purposes of the burglary statute and, therefore, the
violation of the protection order alone was enough.
¶38
The district court agreed with the prosecution and, thus, did
not analyze the specific facts of this case, beyond
Dilka's protection order violation, in finding that the
prosecution had established probable cause to support the
second degree burglary charge.
¶39
Dilka then sought relief under C.A.R. 21, and we issued an
order to show cause.
II.
Analysis
¶40
I begin by setting forth the elements of second degree
burglary, and I note particularly the meanings of the
pertinent terms contained therein. Next, I explain why I do
not believe that a violation of a protection order
always constitutes a crime against another person or
property and why, in holding otherwise, the majority's
21
opinion (1) unnecessarily lowers the prosecution's burden
of proof in burglary cases in which the defendant violated a
protection order and (2) will lead to absurd and unjust
results. I end by explaining why I believe the majority errs
in relying substantially on Rhorer to reach its
conclusion in this case.
A.
Applicable Legal Principles
¶41
"A person commits second degree burglary, if the person
knowingly breaks an entrance into, enters unlawfully in, or
remains unlawfully after a lawful or unlawful entry in a
building or occupied structure with intent to commit therein
a crime against another person or property." §
18-4-203(1).
¶42
Although the statute does not define "a crime against
another person or property," in Poindexter,
¶ 11, 338 P.3d at 355-56, the division adopted the
definitions of those terms contained in Black's Law
Dictionary, and the parties appear to agree that those
definitions apply here.
¶43
Specifically, the Poindexter division noted that a
crime against another person is "[a] category of
criminal offenses in which the perpetrator uses or threatens
to use force." Id., 338 P.3d at 355 (quoting
Crimes Against Persons, Black's Law Dictionary
(8th ed. 2004)). Likewise, an offense against the person is
"[a] crime against the body of another human
being." Id. (quoting Offense Against the
Person, Black's Law Dictionary (8th ed. 2004)). And
a crime against property is "[a] category of criminal
offenses in which the perpetrator seeks to derive an
22
unlawful benefit from —or do damage to
—another's property without the use or threat of
force." Id., 338 P.3d at 356 (alteration in
original) (quoting Crimes Against Property,
Black's Law Dictionary (8 th ed. 2004)). (The current
definitions in Black's Law Dictionary are
identical. See Crimes Against Persons, Black's
Law Dictionary (12th ed. 2024); Crimes Against
Property, Black's Law Dictionary (12th ed. 2024);
Offense Against the Person, Black's Law
Dictionary (12th ed. 2024).) And the division pointed out
that for purposes of the foregoing definition of a crime
against property, the fact that an offense presents a risk of
physical harm to a person does not necessarily establish that
the offense is a crime against a person. Poindexter,
¶ 12, 338 P.3d at 356.
B.
Protection Orders and Crimes Against Persons or
Property
¶44
Applying the plain meanings of the foregoing terms, it is
indisputable that a violation of a protection order
can constitute a crime against another person or
property. For example, a person who is subject to a
protection order would likely commit a crime against another
person if the perpetrator accosted a protected person and
used or threatened to use force in the course of the
interaction. Similarly, a person who is subject to a
protection order would likely commit a crime against property
if the perpetrator entered into a protected space and stole
or damaged items belonging to the protected person.
23
¶45
But under the plain meanings of the foregoing terms, a
violation of a protection order does not always
constitute a crime against another person or property. For
example, a person subject to a protection order might enter a
protected space simply by walking into it without using or
threatening to use any force and without encountering another
person. Likewise, a person subject to a protection order
might enter a protected space without force or threat of
force and at a time when the protected person is not expected
to be there simply to retrieve the perpetrator's own
property. I am hard-pressed to see how such conduct would
constitute either a crime against another person or property
as defined above (again, the People do not appear to dispute
those definitions here).
¶46
Nor is every protection order violation by its very nature a
crime against another person, as the People suggest. For
example, as Dilka observes, section 18-1-1001(1)(a), C.R.S.
(2025), imposes a mandatory protection order against all
persons charged with violating any provision of title 18,
which would include persons charged with drug distribution,
possession of a weapon by a previous offender, or other
crimes unrelated to domestic violence, many of which might be
deemed victimless crimes (i.e., as crimes against society,
rather than crimes against individual victims).
¶47
For these reasons, in my view, there is no legitimate basis
to conclude that a violation of a protection order is
—in every case, regardless of the facts of the
24
case —a crime against another person or property and,
therefore, a predicate offense to second degree burglary.
Rather, I believe that the law requires a case-by-case
assessment to determine whether the protection order
violation at issue was, in fact, a crime against another
person or property.
¶48
To hold otherwise, as the majority does today, unnecessarily
lowers the prosecution's burden of proof in burglary
cases in which the defendant violated a protection order.
Now, in such a case, the prosecution need no longer prove
that the defendant committed a crime against another person
or property, as those terms have been defined in case law.
Rather, the violation of a protection order alone and as a
matter of law establishes these essential elements of the
crime of second degree burglary.
¶49
I perceive no basis in law for allowing a court to relieve
the prosecution of the burden of proving beyond a reasonable
doubt essential elements of second degree burglary (or any
other crime), and the majority cites none.
¶50
Moreover, the majority's ruling will lead to absurd and
unjust results in many cases. Take the examples that I cited
above (i.e., the scenarios in which (1) a person subject to a
protection order enters a protected space simply by walking
into it without using or threatening to use any force or
without encountering another person and (2) the perpetrator
enters a protected space without force or threat of force and
at a time when the protected person is not expected to be
there
25
simply to retrieve the perpetrator's own property). Under
the majority's view, this conduct alone can be a
predicate offense for second degree burglary, which is either
a class 3 or class 4 felony, § 18-4-203(2), with all of
the severe collateral consequences attendant to convictions
of such crimes. I, however, cannot perceive how such conduct
would constitute a crime against another person or property,
and I believe that concluding otherwise, and allowing such
conduct to support a second degree burglary charge, would be
absurd and manifestly unjust.
C.
Rhorer
¶51
The majority's principal basis for concluding that any
violation of a protection order is, as a matter of law, a
crime against another person or property and therefore a
predicate crime for second degree burglary is that we
purportedly so concluded in Rhorer, 967 P.2d at 148.
Although I acknowledge that certain language that we used in
that case was broad, a close reading of the case shows that
the issue presented today was not, in fact, before us in
Rhorer. Nor did we actually conclude that a
violation of a protection order is, in every case, a crime
against another person or property.
¶52
In Rhorer, the Denver County Court had issued,
pursuant to a municipal ordinance, a no-contact order against
the defendant. Id. at 147-48. A division of our
court of appeals subsequently concluded that because a
municipal ordinance is not a public law, its violation is not
a crime. Id. at 149. Accordingly, in the
26
division's view, the prosecution had not proved that the
defendant had committed a predicate "crime" for
purposes of the burglary statute. Id. at 147, 149.
¶53
The People sought certiorari, and we granted their petition,
explaining in the very first sentence of our opinion,
"We granted certiorari... to determine whether violation
of a 'no-contact' court order ... issued by the
Denver County Court pursuant to a municipal ordinance can
serve as a predicate act, i.e., constitutes a
'crime,' for purposes of the second degree burglary
statute." Id. at 147 (citations omitted). This
was the only question before us in that case.
¶54
We ultimately reversed the division's judgment,
concluding that when the Denver County Court had issued its
no-contact order, it had invoked its authority under state
law. Id. at 150. Thus, we determined that the jury
was appropriately instructed that the violation of the
no-contact order at issue could serve as a predicate crime
for purposes of the second degree burglary statute.
Id. at 151.
¶55
Notwithstanding that the foregoing was the actual holding in
that case, in our opinion, we said, "We hold that a
violation of a no-contact order constitutes a predicate crime
for purposes of the burglary statute." Id. at
148. Although when taken out of context, this statement seems
exceptionally broad, we must read the statement in the
context of our conclusion that a protection order violation
can be a predicate crime to burglary even if the order was
issued pursuant to a municipal ordinance. In my view, that is
all that our statement was intended to convey. And
27
as Dilka contends, we did not address the issue
presented here, namely, whether a protection order violation
is always a crime against another person or property
and is therefore, in every case, a predicate crime that can
support a burglary charge. As noted above, that question was
not before us.
¶56
Because I believe that the district court here misinterpreted
what we actually held in Rhorer (as I respectfully
believe my colleagues in the majority do), that court never
considered whether, on the facts presented, the violation of
the protection order at issue constituted a crime against
another person or property, as those terms have been defined
by case law. Moreover, without pre-judging the issue, I
believe that Dilka has presented a credible argument that the
district court could not properly have found that he
committed a crime against another person or property because
no evidence indicated that he had used or threatened to use
force against the alleged victim, committed a crime against
the alleged victim's person, or sought to damage the
alleged victim's property without the use of force.
¶57
Accordingly, I believe that further proceedings are warranted
to allow the district court to determine, on the facts
presented, whether probable cause indeed exists to permit the
prosecution to pursue a charge of second degree burglary
against Dilka.
28
III.
Conclusion
¶58
For these reasons, (1) I do not agree that every violation of
a protection order, regardless of the facts at issue,
constitutes a crime against another person or property
sufficient to establish a predicate crime for second degree
burglary; (2) holding otherwise unnecessarily lowers the
prosecution's burden of proof in all burglary cases in
which the defendant may have violated a protection order and
will lead to absurd and unjust results in many cases; and (3)
our decision in Rhorer did not actually decide the
question now before us. Accordingly, I would make our order
to show cause absolute and return this case to the district
court with instructions that the court determine, based on
the facts presented, whether Dilka committed a crime against
another person or property sufficient to support the second
degree burglary charge against him.
¶59
I therefore respectfully dissent.
---------
Notes:
[1] Protection orders are also called
"no-contact orders" and "restraining
orders" in common parlance and past case law. For
consistency, we refer to them as "protection
orders" throughout this opinion, consistent with current
Colorado statutes. See § 18-1-1001, C.R.S.
(2025); § 18-6-803.5, C.R.S. (2025); § 18-6-803.7,
C.R.S. (2025).
[2] Dilka is charged with one count of
second degree burglary, § 18-4-203(1), (2)(b)(I); two
counts of violation of a protection order, §
18-6-803.5(1)(a) (relating to mandatory protection orders
issued in two separate Weld County cases); one count of
criminal mischief, § 18-4-501(1), (4)(c), C.R.S. (2025);
and one count of second degree criminal trespass, §
18-4-503(1)(a), C.R.S. (2025).
[3] Although Dilka relies on the court of
appeals' analysis of this phrase in People v.
Poindexter, 2013 COA 93, ¶¶ 11-15, 338 P.3d
352, 355-56, we are not bound by that decision. In any event,
the statutory history of the second degree burglary statute
supports a broad reading of the phrase. The phrase did not
appear in the second degree burglary statute until 1971 when
the legislature added it as part of the overhaul of
Colorado's criminal code. See Ch. 121, sec. 1,
§ 40-4-203, 1971 Colo. Sess. Laws 388, 427. Before that
time, second degree burglary allowed any felony or
misdemeanor to serve as a predicate crime. See
§ 40-3-5, 3 C.R.S. (1963) (defining the predicate
offenses for second degree burglary as "murder, robbery,
rape, mayhem, larceny, or other felony or
misdemeanor" (emphasis added)). When the 1971
revision replaced this language with the phrase "crime
against a person or property," 1971 Colo. Sess. Laws at
427, an official comment accompanied the amendment,
clarifying that the new language "embod[ied] the
substance of section 40-3-5, C.R.S. 1963." §
40-4-202 cmt., 3 C.R.S. (1963 & Supp. 1971). Because the
"substance of section 40-3-5, C.R.S. 1963,"
id., included all felonies and misdemeanors as
predicate crimes, we can infer, at a minimum, that the
legislature intended the replacement phrase "crime
against a person or property" to be broadly construed.
See Cooper v. People, 973 P.2d 1234, 1240 (Colo.
1999) (relying on the official comments appended to the
burglary statutes as evidence of the statutes' proper
scope).
[4] The definition also applies to orders
under section 19-2.5-607, C.R.S. (2025) (requiring protection
orders against juvenile criminal offenders and their parents
akin to those imposed on adults under section 18-1-1001);
section 19-4-111(4), C.R.S. (2025) (allowing parties to
family law proceedings concerning parental rights and
responsibilities to request temporary protection orders
concerning the allocation of parental responsibility,
decision-making responsibility, and parenting time); and
C.R.C.P. 365 (providing limited authority to county courts to
issue temporary restraining orders).
[5] The statute criminalizing protection
order violations cross references and incorporates elements
of the civil protection order statutes. See §
18-6-803.5(1)(c)(I), (1.5)(a.5)(I)(A) (stating that certain
civil protection order violations can be crimes and including
civil protection orders in the definition of
"[protection order"). And the legislative
declaration itself cross references the "mandatory
criminal process" for protection orders in section
18-1-1001. § 13-14-100.2(1). Thus, while the civil and
criminal protection order statutes reside in different titles
of the code, the legislature has treated the criminal
violation of either the same under section 18-6-803.5. Such
violations present the same harm or threat of harm to
protected persons and their property.